... Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.[2]

Congress has enacted a Presidential Succession Act on three occasions: 1792 (1 Stat.239), 1886 (24 Stat.1), and 1947 (61 Stat.380). The 1947 Act was last revised in 2006.

Although none of these succession acts have ever been invoked, having to do so was a distinct possibility on several occasions. However, the future likelihood that a speaker, president pro tempore, or cabinet member will be called upon to be acting president has diminished greatly due to the Twenty-fifth Amendment's provision for filling vice presidential vacancies.[3]

Contents

Article II, Section 1, Clause 6 of the Constitution authorizes Congress to declare who should act as president if both the president and vice president died or were otherwise unavailable to serve during their terms of office. Legislation to establish such a line of succession was introduced December 1790, in the House of Representatives of the 1st Congress. When brought up for discussion the following month, the President pro tempore of the Senate and the Speaker of the House were proposed; the Secretary of State and the chief justice of the Supreme Court were as well.[2] Lawmakers failed, however, to reach consensus on who should be the statutory successor. Naming the Secretary of State was unacceptable to most Federalists, as they did not want the office's current occupant, Thomas Jefferson, the leader of the growing anti-administration opposition that would become the Democratic-Republican Party, placed so close to the presidency. Constitutional and policy objections were raised to naming the President pro tempore or the Speaker, as it was assumed the individual would retain their office and seat in Congress while temporarily performing duties of the presidency;[4] similar separation of powers concerns were also raised regarding the Chief Justice.[5]

The matter was raised again when the 2nd Congress convened later in 1791. On November 30, the Senate approved legislation titled,."An act relative to the election of a President and Vice President of the United States, and declaring the officer who shall act as President in case of vacancies in the offices both of President and Vice President," which was sent to the House for concurrence. It contained a provision naming the President pro tempore of the Senate, or, if that office were vacant, the Speaker of the House of Representatives as acting president if a vacancy arose in both the presidency and vice presidency.[5] Various representatives, including a number of the Constitution's framers, criticized the arrangement as being contrary to their intent. As a result, after a contentious debate, the February 15, 1792 House-passed bill struck out of the President pro tempore and Speaker and inserted the Secretary of State in their place. The Senate rejected the House change a few days later, and the House relented. The bill became law on March 1, 1792, with the signature of President George Washington.[2][5]

The Presidential Succession Act of 1792, sections 9 and 10 of the larger act relative to the election of the president and vice president (Full text), provided that the president pro tempore of the Senate would be first in line for the presidency should the offices of the President and the Vice President both be vacant at the same time. The Speaker of the House was second in line.[6] Section 9 provided that the statutory successor would serve in an acting capacity until a new president could be elected.[7][A] If such a double vacancy occurred, Section 10 directed the Secretary of State to notifying the governor of each state of the vacancies and of the special election to fill them. This special election would take place no fewer than two months later.[9] The persons elected president and vice president in such a special election would have served a full four-year term beginning on March 4 of the next year; no such election ever took place.

After submitting the Twelfth Amendment to the states for ratification, the Eighth Congress approved a supplement to the 1792 Act. Signed into law by President Thomas Jefferson on March 26, 1804, this statute reflected the new manner of voting for President and Vice President prescribed by the amendment,[B] and established a contingency plan in case it were to be ratified prior to the 1804 election.[11]

While the succession provisions of the 1792 Act were never invoked, there were ten instances when the Vice Presidency was vacant:[12]

April 20, 1812 – March 4, 1813 (318 days) following the death of George Clinton

November 23, 1814 – March 4, 1817 (2 years, 101 days) following the death of Elbridge Gerry

December 28, 1832 – March 4, 1833 (66 days) following the resignation of John C. Calhoun

April 4, 1841 – March 4, 1845 (3 years, 334 days) following the accession of John Tyler to the presidency

July 9, 1850 – March 4, 1853 (2 years, 238 days) following the accession of Millard Fillmore to the presidency

April 18, 1853 – March 4, 1857 (3 years, 320 days) following the death of William R. King

April 15, 1865 – March 4, 1869 (3 years, 323 days) following the accession of Andrew Johnson to the presidency

November 22, 1875 – March 4, 1877 (1 year, 102 days) following the death of Henry Wilson

September 19, 1881 – March 4, 1885 (3 years, 166 days) following the accession of Chester A. Arthur to the presidency

November 25, 1885 – March 4, 1889 (3 years, 99 days) following the death of Thomas A. Hendricks

In each case, had the president died, resigned, been removed from office or been disabled during one of these vacancies, the President pro tempore of the Senate would have become Acting President. Such a double vacancy nearly occurred on three occasions:

In 1844, President John Tyler narrowly missed being one of the several people killed when a gun on newly built USS Princeton exploded during a ceremonial cruise. Had Tyler died, President pro tempore Willie Person Mangum would have become Acting President.[13][14]

As a consequence of the sometimes lengthy vacancies in the office of Vice President, the person serving as president pro tempore of the Senate garnered heightened importance, for although he did not assume the vice presidency, he was then next in line for the presidency.[17] Several who served during these vacancies were referred to informally as "Acting Vice President."[18]

The death of President James A. Garfield in 1881, after his lengthy incapacity, followed in 1885 by the death of Vice President Thomas A. Hendricks, forced Congress to address the inadequacies of the 1792 Succession Act. When Chester A. Arthur succeeded to the presidency following Garfield's death, there was no vice president, no president pro tempore of the Senate, and no Speaker of the House of Representatives.[19] President Grover Cleveland faced the same situation following Hendricks's death. Twice within the span of four years it happened that there would have been no one to discharge the powers and duties of the presidency if it again became necessary to do so.[20]

A bill to transfer the succession from congressional officers to members of the Cabinet was introduced in the Senate by George Hoar in 1882. It was passed by the Senate the following year but failed in the House. Hoar laid out several reasons why the succession statute need to be changed. Among them, that the four-year term of a president elected in a special election might be out of sync with the Congressional election cycle, resulting in "confusion and trouble." He also pointed out the negative constitutional and practical implications of having the president pro tempore and the speaker in the line of succession. To buttress this argument, he pointed out that since the federal government began operations 96 years earlier in 1789, six secretaries of state had gone on to be elected president, serving in that office for 36 of those 96 years.[21][C] Reintroduced shortly after the death of Vice President Hendricks, Senator Hoar's bill was passed by the Senate after vigorous debate, in December 1885, and by the House one month later. It became law on January 19, 1886, with President Cleveland's signature.[19]

The Presidential Succession Act of 1886 (Full text) substituted the Cabinet secretaries—listed in the order in which their department was created—for the President pro tempore and Speaker in the line of succession. It provided that in case of the removal, death, resignation or inability of both the President and Vice President, such officer would "act as President until the disability of the President or Vice-President is removed or a President shall be elected." It mandated that If Congress were not then in session or due to meet within twenty days, the acting president was to call a special session of Congress, giving no less than twenty days' notice. It also stipulated that for a member of the Cabinet to act as president, he had to have been appointed by and with the advice and consent of the Senate and be eligible to the office of President and not under impeachment. This last provision replaced the 1792 provision for a double-vacancy special election; it was a loophole left for Congress to call such an election if that course seemed appropriate.[19][21]

While it never became necessary to invoke the 1886 Act, the vice presidency was vacant at the time of its adoption, and would become vacant five more times during the 61 years that it was in effect:[12]

November 21, 1899 – March 4, 1901 (1 year, 103 days) following the death of Garret Hobart. John Hay was Secretary of State.

September 14, 1901 – March 4, 1905 (3 years, 171 days) following the accession of Theodore Roosevelt to the presidency. John Hay was Secretary of State.

April 12, 1945 – January 20, 1949 (3 years, 283 days) following the accession of Harry S. Truman to the presidency. James F. Byrnes was Secretary of State.

Had the incumbent president died, resigned, been removed from office or been disabled during one of these vacancies, the Secretary of State would have become Acting President. Although such circumstances never arose, President Woodrow Wilson apparently drew up a plan whereby, given the turmoil of World War I, if his Republican opponent Charles Evans Hughes had won the 1916 election, then Wilson would have dismissed the Secretary of State, Robert Lansing, and recess-appointed Hughes to the post. Soon thereafter, Vice President Thomas R. Marshall and then Wilson himself would have resigned, thus allowing President-elect Hughes to serve as acting president until his March 4, 1917 inauguration. Wilson's narrow victory over Hughes rendered the plan moot.[22][23] Also of note is that 1940 Republican presidential nominee Wendell Willkie and vice presidential nominee Charles L. McNary both died in 1944 (October 8, and February 25, respectively); the first, and to date only time both members of a major-party presidential ticket died during the term for which they sought election. Had they been elected, Willkie's death would have resulted in the Secretary of State becoming acting president for the remainder of the term ending on January 20, 1945.[24][25]

In June 1945, two months after becoming president upon Franklin D. Roosevelt's death, Harry Truman recommended to Congress that the Speaker of the House and President pro tempore of the Senate be restored to and given priority in the presidential line of succession over members of the Cabinet. The arrangement reflected Truman's belief that the president should not have the power to appoint to office "the person who would be my immediate successor in the event of my own death or inability to act," and that the presidency should, whenever possible, "be filled by an elective officer." Cabinet officials are appointed by the president, whereas the Speaker and the President pro tempore are elected officials. He also recommended that a provision be made for election of a new president and vice president should vacancies in both of those offices occur more than three months before the midterm congressional elections.[7][9][27]

A bill incorporating the president's proposal was introduced in the House on June 25, 1945 by Hatton W. Sumners and approved—minus the special election provision—four days later by a wide margin. The measure was forwarded to the Senate, which took no action on it during the balance of the 79th Congress. Truman renewed his request in 1947, when the 80th Congress convened following the 1946 midterm elections. Early in 1947, Senator Kenneth S. Wherry introduced a bill in the Senate which, like the previous 1945 version, put the Speaker and the President pro tempore second and third in the succession order respectively, and contained no provision for a special election. After considerable debate the measure was approved on June 27, 1947, by a vote of 50 to 35. Forwarded to the House, the legislation engendered little debate, and was passed on July 10 by a vote of 365 to 11. President Truman signed the bill into law on July 18.[26]

Like the 1886 act, this statute specifies that only Cabinet members who are constitutionally eligible to the office of President, and not under impeachment by the House at the time the powers and duties of the presidency devolve upon them, may become Acting President. However, unlike the 1886 act, this statute mandates that any Cabinet officer who accedes to the powers and duties of the presidency resign their Cabinet post.[16] It also contains a clause stipulating that any Cabinet officer acting as President may be "bumped" from office (supplanted) by a qualified individual higher up the line of succession, a provision not contained in either of the earlier succession acts.[29]

The 1886 and 1947 acts diverge in one other way. The 1886 act describes "such officers as shall have been appointed by the advice and consent of the Senate to the offices therein named" as being eligible to serve as Acting President, whereas the 1947 act describes "officers appointed, by and with the advice and consent of the Senate" as being eligible.[29] The less explicit 1947 language raises the question of whether acting secretaries are in the line of succession. The nonpartisanContinuity of Government Commission, in a 2009 report, said "[r]ead literally, this means that the current act allows for acting secretaries to be in the line of succession as long as they are confirmed by the Senate for a post (even for example, the second or third in command within a department)."[30] Although a case for their inclusion can be made, it is not clear whether acting secretaries are indeed in the line of succession.[31]

The 1947 act established that a person who becomes an acting president under the act will earn the same compensation given to the President.[9] Additionally, based on authority granted by Section 3 of the Twentieth Amendment, the act applies to situations where the president-elect, alone or together with the vice president-elect, fails to meet the qualifications for the office of President. Based on that same authority, the act also applies to situations in which there is neither a president-elect nor a vice president-elect on Inauguration Day.[30]

The 1947 act has been modified by a series of incidental amendments to reflect the creation of new federal departments.[3] Less than 2 weeks after the Act was enacted, Truman signed the National Security Act of 1947 into law. This statute (in part) merged the Department of War (renamed as the Department of the Army) and the Department of the Navy into the National Military Establishment (renamed Department of Defense in 1949), headed by the Secretary of Defense.[32] It also included a provision substituting Secretary of Defense for Secretary of War in the line of succession and striking the Secretary of the Navy out.

When the later department was created in 2002, the act creating it did not contain a provision adding the new department's secretary into the line of presidential succession. Secretaries of newly-created cabinet-level departments are not automatically included, but must be specifically incorporated.[3] Companion bills to include the Secretary of Homeland Security (SHS) in the line of succession were introduced in the 108th Congress (in 2003) and again in the 109th (in 2005) by Senator Mike DeWine and Representative Tom Davis. Both bills strayed from tradition, however, by proposing to place the SHS in the line of succession directly after the Attorney General (rather than at the end of the line). Proponents of placing the SHS high in the order of succession (eighth overall, as opposed to eighteenth) argued that, given the department's many responsibilities in the areas of security and national preparedness, the officer responsible for disaster relief and security, could be expected to possess the relevant knowledge and expertise to capably function acting as President following a catastrophic event; the same could not be said of every cabinet secretary. Referred to committee, no action was taken on these proposals.[29] The matter remained unresolved until March 2006, when the USA PATRIOT Improvement and Reauthorization Act added the secretary of Homeland Security to the presidential line of succession.[34]

August 9, 1974 – December 19, 1974 (132 days) following Gerald Ford succeeding to the presidency

Had the president died, resigned, been removed from office or been disabled during one of these vacancies the speaker of the House would have become Acting President. The nation faced the prospect of such a double-vacancy in the autumn of 1973. With the future of Richard Nixon's presidency in doubt on account of the Watergate scandal, and with the vice presidency vacant following Spiro Agnew's resignation, there was a possibility that Speaker of the House Carl Albert might become acting president.[35] Recourse in this case to the 1947 Act was not necessary, because Section 2 of the Twenty-fifth Amendment, ratified only six years earlier, established a mechanism for filling an intra-term vice presidential vacancy. As a result, rather than Carl Albert becoming acting president when Richard Nixon resigned on August 9, 1974, Vice President Gerald Ford became president on that date.[35]

The Twenty-fifth Amendment also established a procedure for responding to presidential disabilities whereby a vice president could assume the powers and duties of the presidency as Acting President; two presidents have, on three occasions, followed this procedure to declare temporary disability:[36]

June 29, 2002 and July 21, 2007 – George W. Bush, prior to undergoing medical procedures, which were done under sedation; Dick Cheney was acting president for approximately two hours on each occasion.

During the September 11, 2001 terrorist attacks, the Secret Service carried out its plan for ensuring the continuity of government, which in part called for gathering up persons in the presidential line of succession and taking them to a secure location, to guarantee that at least one officer in the line of succession would survive the attacks.[37] Speaker of the House Dennis Hastert and several other congressional leaders went;[38] President pro tempore of the Senate Robert Byrd did not, choosing instead to be taken to his Capitol Hill home. Vice President Dick Cheney and Secretary of Transportation Norman Mineta went into an underground bunker at the White House; a few Cabinet members were out of the country that day.[39]

There is a long history, dating back to the Cold War era,[40] of keeping a designated successor away from events at which numerous high ranking federal officers—including the President, Vice President, Congressional leaders, and Cabinet members—will be gathered. This is done to ensure that there is always someone available to assume the reins of government if all the other officers are killed at the event. For example, Secretary of Agriculture Sonny Perdue was the Cabinet member so designated when President Donald Trump delivered his 2018 State of the Union Address. Perdue was taken to a secure location several hours beforehand, and remained there throughout the event. Although any cabinet secretary could be selected, the person appointed has usually come from one of the newer departments low in the line of succession.[41] The person chosen must also meet the constitutional requirements to serve as president.[40][D]

The 1947 act has been widely criticized over the years as unconstitutional.[42]Akhil Amar, who is a legal scholar in constitutional law, has called it "a disastrous statute, an accident waiting to happen".[43] There are two main areas of concern.

The 1947 Act is probably unconstitutional because it appears that the Speaker of the House and the President pro tempore of the Senate are not "Officers" eligible to act as President within the meaning of the Succession Clause. This is because in referring to an "Officer", the Succession Clause, taken in its context in Section 1 of Article II, probably refers to an "Officer of the United States", a term of art under the Constitution, rather than any officer, which would include legislative and state officers referred to in the Constitution (e.g., the reference to state militia officers found in Article I, Section 8). In the very next section of Article II, the President is empowered to "require the Opinion, in writing, of the principal Officer in each of the executive Departments" and to appoint, by and with the advice and consent of the Senate, "Officers of the United States". These are the "Officers" to whom the Succession Clause probably refers. This contextual reading is confirmed by Madison's notes from the Constitutional Convention, which reveal that the Convention's Committee of Style, which had no authority to make substantive changes, substituted "Officer" in the Succession Clause in place of "Officer of the United States," probably because the Committee considered the full phrase redundant.[44]

In Is the Presidential Succession Law Constitutional?, Akhil Amar and Vikram Amar refer to the Incompatibility Clause (Article I, Section 6, Clause 2)—which bars officials in the federal government's executive branch from simultaneously serving in either the U.S. House or Senate—as evidence that members of the Congress cannot be in the Presidential line of succession.[16]

The Act is also controversial because it provides that an officer who is acting as President due to the disability or failure to qualify of an officer higher in the order of succession does so only until the other officer's disability or disqualification is removed. If happens, the previously entitled officer can "bump" the person then acting as President.[29] During testimony in 2004 before the a U.S. House subcommittee, Akhil Reed Amar stated that this provision violates "the Succession Clause, which says that an officer named by Congress shall 'act as President ... until the Disability be removed, or a President shall be elected.'"[45]

In its 2009 report, the Continuity of Government Commission argued that as well as going against the language of the Constitution, bumping violates the doctrine of separation of powers by undermining the independence of the executive from the Congress:

The Constitution on its face seems to stipulate that once a person is deemed to be acting president by the Presidential Succession Act, he or she cannot be replaced by a different person. This interpretation makes some logical sense as the provision would presumably prevent the confusion that would arise if the presidency were transferred to several different individuals in a short period of time. It would also seemingly prevent Congress from exercising influence on the executive branch by threatening to replace a cabinet member acting as president with a newly elected Speaker of the House.[30]

On a practical level, it is argued that this provision could result in there being multiple legitimate presidents in a short period of time during a national crisis and weaken the public legitimacy of successors.[31][45] In a January 2011 Roll CallOp-ed, Congressman Brad Sherman wrote,

[The bumping provision] creates a game of musical chairs with the presidency and would cause great instability. In a time of national crisis, the nation needs to know who its president is.[46]

^Under the original procedure for choosing the President and Vice President prescribed by Article II, Section 1, Clause 3, of the Constitution, each presidential elector cast two votes for President; at least one of the individuals voted for had to be from a state different from the elector's. The individual with the majority of votes became President, and the runner-up became Vice President.[8]

^Under the revised procedure for choosing the President and Vice President prescribed by the Twelfth Amendment the Constitution, each presidential elector casts one of their two electoral votes for a presidential candidate and casts their other vote for a vice presidential candidate; as before, at least one of the individuals voted for had to be from a state different from the elector's.[10]

^The six secretaries of state had become president were: Thomas Jefferson, James Madison, James Monroe, John Q. Adams, Martin Van Buren and James Buchanan. John Tyler was the only president pro tempore to become president and James K. Polk the only Speaker.[19]

^Brewer, F. (1945). "Succession to the presidency". Editorial research reports 1945 (Vol. II). Washington, D.C.: CQ Press. Retrieved July 12, 2018. If the Republican ticket had been elected in 1940, the plan of succession adopted in 1886 would probably have come into operation for the first time in 1944. Charles McNary, Republican candidate for Vice President, died on Feb. 25, 1944, With the death of Wendell Willkie, on Oct. 8, his Secretary of State would have been sworn in for the remainder of the term ending on Jan. 20, 1945.

^ ab"2004 Presidential Succession Act". Hearing Before the Subcommittee on the Constitution of the Committee on the Judiciary, House of Representatives, One Hundred Eighth Congress, Second Session. Washington, D.C.: House of Representatives. October 6, 2004. Retrieved July 11, 2018.